United States: Telemarketing Compliance: Beyond Consent

Last Updated: August 7 2019
Practice Guide by Klein Moynihan Turco LLP

While much of the focus of the telemarketing industry in recent years has been on issues related to consumer consent, made relevant by material changes to consent requirements under the Telephone Consumer Protection Act (the “TCPA”), there are other legal requirements that telemarketers must be mindful of in connection with the conduct of their business.

The TCPA, the Federal Trade Commission’s (“FTC”) Telemarketing Sales Rule (“TSR”) and applicable state laws contain numerous provisions governing the logistical and procedural aspects of telemarketing.

Time and Day Restrictions

Under federal law, telemarketing calls must be placed between the hours of 8:00 a.m. and 9:00 p.m. (based on the local time of the recipient), although some state laws impose a narrower calling window. In addition, most jurisdictions prohibit telemarketing calls on Sunday, although some states may permit certain types of calls during specially designated hours. Further, a handful of states prohibit all telemarketing calls on legal holidays.

Recording Requirements

At a minimum, to the extent that a business records its telemarketing calls (which we recommend), there must be clear notice to the consumer at the outset of each such telemarketing call that the call will be recorded for quality assurance purposes, and that such recording will be maintained as a record of the underlying transaction(s).

Call Conduct Requirements

Under applicable federal and state law, each telemarketing agent on every call must, at a minimum, provide his or her full first and last name, as well as the full corporate name (or registered d/b/a) of the entity that they are calling on behalf of.

In addition, a number of states apply the “no rebuttal rule” – meaning that if a consumer indicates that he or she is not interested in a product and/or service promoted by the telemarketer, the call must end there, and the telemarketer may not continue to try to convince the consumer to purchase/obtain the product and/or service being offered. Other states permit only one (1) “rebuttal” before the telemarketer is compelled to end the call.

That’s Not All, Folks

Please note that this is only a brief overview of some of the procedural requirements that must be observed by telemarketers operating in the United States. As such, please remember to review all applicable state and federal laws prior to engaging in any telemarketing activity.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

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Useful Resources
If your business or organization uses telemarketing, this in-depth guide is a “must read.”
The Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR) puts consumers in charge of the number of telemarketing calls they get at home.
In 2012, the FCC revised its TCPA rules regarding the use of robocalls by telemarketers.
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